IN THE SUPREME COURT OF IOWA
Filed December 21, 2012
JAMES H. KNIGHT DDS, P.C. and
Appeal from the Iowa District Court for Webster County, Thomas J.
A former employee appeals from the district court's grant of
summary judgment to an employer in a sex discrimination case.
Paige E. Fiedler and Emily E. McCarty of Fiedler & Timmer,
P.L.L.C., Urbandale, for appellant.
Stuart J. Cochrane and James L. Kramer of Johnson, Kramer,
Good, Mulholland, Cochrane & Driscoll, P.L.C., Fort Dodge, for appellees.
Can a male employer terminate a female employee because the
employer's wife, due to no fault of the employee, is concerned about the
nature of the relationship between the employer and the employee? This
is the question we are required to answer today. For the reasons stated
herein, we ultimately conclude the conduct does not amount to unlawful
sex discrimination in violation of the Iowa Civil Rights Act.
I. Facts and Procedural Background.
Because this case was decided on summary judgment, we set forth
the facts in the light most favorable to the plaintiff, Melissa Nelson.
In 1999, Dr. Knight 1 hired Nelson to work as a dental assistant in
his dental office. At that time, Nelson had just received her community
college degree and was twenty years old.
Over the next ten-and-a-half years, Nelson worked as a dental
assistant for Dr. Knight. Dr. Knight admits that Nelson was a good
dental assistant. Nelson in turn acknowledges that Dr. Knight generally
treated her with respect, and she believed him to be a person of high
On several occasions during the last year and a half when Nelson
worked in the office, Dr. Knight complained to Nelson that her clothing
was too tight and revealing and "distracting." Dr. Knight at times asked
Nelson to put on her lab coat. Dr. Knight later testified that he made
these statements to Nelson because "I don't think it's good for me to see
J We will refer to the defendants Dr. James Knight and James H. Knight DDS,
P.C. collectively as "Dr. Knight."
her wearing things that accentuate her body." Nelson denies that her
clothing was tight or in any way inappropriate. 2
During the last six months or so of Nelson's employment, Dr.
Knight and Nelson started texting each other on both work and personal
matters outside the workplace. Neither objected to the other's texting.
Both Dr. Knight and Nelson have children, and some of the texts involved
updates on the kids' activities and other relatively innocuous matters.
Nelson considered Dr. Knight to be a friend and father figure, and she
denies that she ever flirted with him or sought an intimate or sexual
relationship with him.
Dr. Knight acknowledges he once told Nelson that if she saw his
pants bulging, she would know her clothing was too revealing. On
another occasion, Dr. Knight texted Nelson saying the shirt she had worn
that day was too tight. After Nelson responded that she did not think he
was being fair, Dr. Knight replied that it was a good thing Nelson did not
wear tight pants too because then he would get it coming and going. Dr.
Knight also recalls that after Nelson allegedly made a statement
regarding infrequency in her sex life, he responded to her, "[T]hat's like
having a Lamborghini in the garage and never driving it." Nelson recalls
that Dr. Knight once texted her to ask how often she experienced an
orgasm. Nelson did not answer the text. However, Nelson does not
remember ever telling Dr. Knight not to text her or telling him that she
In late 2009, Dr. Knight took his children to Colorado for
Christmas vacation. Dr. Knight's wife Jeanne, who was also an employee
2 Nelson recalls that Dr. Knight said her clothing was too "distracting" and that
he "may have" asked her to put on her lab coat. In any event, she testified that she put
on a coat whenever Dr. Knight complained to her about her clothing.
in the dental practice, stayed home. Jeanne Knight found out that her
husband and Nelson were texting each other during that time. When Dr.
Knight returned home, Jeanne Knight confronted her husband and
demanded that he terminate Nelson's employment. Both of them
consulted with the senior pastor of their church, who agreed with the
Jeanne Knight insisted that her husband terminate Nelson
because "she was a big threat to our marriage." According to her
affidavit and her deposition testimony, she had several complaints about
Nelson. These included Nelson's texting with Dr. Knight, Nelson's
clothing, Nelson's alleged flirting with Dr. Knight, Nelson's alleged
coldness at work toward her (Ms. Knight), and Nelson's ongoing criticism
of another dental assistant. She added that "[Nelson] liked to hang
around after work when it would be just her and [Dr. Knight] there. I
thought it was strange that after being at work all day and away from her
kids and husband that she would not be anxious to get home like the
other [women] in the office."
At the end of the workday on January 4, 2010, Dr. Knight called
Nelson into his office. He had arranged for another pastor from the
church to be present as an observer. Dr. Knight told Nelson he was
firing her, reading from a prepared statement. The statement said, in
part, that their relationship had become a detriment to Dr. Knight's
family and that for the best interests of both Dr. Knight and his family
and Nelson and her family, the two of them should not work together.
Dr. Knight handed Nelson an envelope which contained one month's
severance pay. Nelson started crying and said she loved her job.
Nelson's husband Steve phoned Dr. Knight after getting the news
of his wife's firing. Dr. Knight initially refused to talk to Steve Nelson,
but later called back and invited him to meet at the office later that same
evening. Once again, the pastor was present. In the meeting, Dr. Knight
told Steve Nelson that Melissa Nelson had not done anything wrong or
inappropriate and that she was the best dental assistant he ever had.
However, Dr. Knight said he was worried he was getting too personally
attached to her. Dr. Knight told Steve Nelson that nothing was going on
but that he feared he would try to have an affair with her down the road
if he did not fire her.
Dr. Knight replaced Nelson with another female. Historically, all of
his dental assistants have been women.
After timely filing a civil rights complaint and getting a "right to
sue" letter from the Iowa Civil Rights Commission, Nelson brought this
action against Dr. Knight on August 12, 2010. Nelson's one-count
petition alleges that Dr. Knight discriminated against her on the basis of
sex. Nelson does not contend that her employer committed sexual
harassment. See McElroy v. State, 637 N.W.2d 488, 499-500 (Iowa 2001)
(discussing when sexual harassment amounts to unlawful sex
discrimination and restating the elements of both quid pro quo and
hostile work environment sexual harassment). Her argument, rather, is
that Dr. Knight terminated her because of her gender and would not
have terminated her if she was male.
Dr. Knight moved for summary judgment. After briefing and oral
argument, the district court sustained the motion. The court reasoned in
part, "Ms. Nelson was fired not because of her gender but because she
was threat to the marriage of Dr. Knight." Nelson appeals.
II. Standard of Review.
We review the district court's summary judgment ruling for
correction of errors at law. Pecenka v. Fareway Stores, Inc., 672 N.W.2d
800, 802 (Iowa 2003). We view the factual record in the light most
favorable to the nonmoving party, affording that party all reasonable
inferences. Id. Summary judgment is proper only if the record, so
viewed, entitles the moving party to judgment as a matter of law. Id.
Section 216.6(l)(a) of the Iowa Code makes it generally unlawful to
discharge or otherwise discriminate against an employee because of the
employee's sex. Iowa Code § 216.6(l)(a) (2009). "When interpreting
discrimination claims under Iowa Code chapter 216, we turn to federal
law, including Title VII of the United States Civil Rights Act . . . ."
Deboom v. Raining Rose, Inc., 772 N.W.2d 1, 7 (Iowa 2009). Generally, an
employer engages in unlawful sex discrimination when the employer
takes adverse employment action against an employee and sex is a
motivating factor in the employer's decision. See Channon v. United
Parcel Serv., Inc., 629 N.W.2d 835, 861 (Iowa 2001).
Nelson advances a straightforward "but for" argument: I would not
have been terminated "but for" my gender. See, e.g., Watson v. Se. Pa.
Transp. Auth., 207 F.3d 207, 213, 222 (3d Cir. 2000) (affirming a jury
verdict in a Title VII case because the charge, taken as a whole,
adequately informed the jury that sex had to be a but-for cause of the
adverse employment action). Dr. Knight responds that Nelson was
terminated not because of her sex — after all, he only employs women —
but because of the nature of their relationship and the perceived threat
to Dr. Knight's marriage. Yet Nelson rejoins that neither the relationship
nor the alleged threat would have existed if she had not been a woman.
Several cases, including a decision of the United States Court of
Appeals for the Eighth Circuit, have found that an employer does not
engage in unlawful gender discrimination by discharging a female
employee who is involved in a consensual relationship that has triggered
personal jealousy. This is true even though the relationship and the
resulting jealousy presumably would not have existed if the employee
had been male.
Tenge v. Phillips Modern Ag Co., like the present case, centered on
a personal relationship between the owner of a small business and a
valued employee of the business that was seen by the owner's wife as a
threat to their marriage. 446 F.3d 903, 905-06 (8th Cir. 2006). In that
case, unlike here, the plaintiff had pinched the owner's rear. Id. at 906.
She admitted that the owner's wife "could have suspected the two had an
intimate relationship." Id. Further, the plaintiff acknowledged she wrote
"notes of a sexual or intimate nature" to the owner and put them in a
location where others could see them. Id. In the end, the owner fired the
plaintiff, stating that his wife was "making me choose between my best
employee or her and the kids." Id.
Reviewing this series of events, the Eighth Circuit affirmed the
summary judgment in favor of the defendants. Id. at 911. The Eighth
Circuit first noted the considerable body of authority that " 'sexual
favoritism,' where one employee was treated more favorably than
members of the opposite sex because of a consensual relationship with
the boss," does not violate Title VII. Id. at 908-909. The court distilled
that law as follows: "[T]he principle that emerges from the above cases is
that absent claims of coercion or widespread sexual favoritism, where an
employee engages in consensual sexual conduct with a supervisor and
an employment decision is based on this conduct, Title VII is not
implicated because any benefits of the relationship are due to the sexual
conduct, rather than the gender, of the employee." Id. at 909.
The Eighth Circuit believed these sexual favoritism precedents
were relevant. The court's unstated reasoning was that if a specific
instance of sexual favoritism does not constitute gender discrimination,
treating an employee unfavorably because of such a relationship does not
violate the law either.
Yet the court acknowledged that cases where the employee was
treated less favorably would be "more directly analogous." Id. The court
then discussed a decision of the Eleventh Circuit where an employee had
been terminated for being a perceived threat to the marriage of the
owner's son. Id. (discussing Platner v. Cash & Thomas Contractors, Inc.,
908 F.2d 902, 903-05 (11th Cir. 1990)). It also cited three federal
district court cases, each of which had "concluded that terminating an
employee based on the employee's consensual sexual conduct does not
violate Title VII absent allegations that the conduct stemmed from
unwelcome sexual advances or a hostile work environment." Id. (citing
Kahn v. Objective Solutions, Int'l, 86 F. Supp. 2d 377, 382 (S.D.N.Y.
2000); Campbell v. Masten, 955 F. Supp. 526, 529 (D. Md. 1997);
Freeman v. Cont'l Technical Serv., Inc., 710 F. Supp. 328, 331 (D. Ga.
After reviewing these precedents, the Eighth Circuit found the
owner had not violated Title VII in terminating the employee at his wife's
behest. As the court explained, "The ultimate basis for Tenge's dismissal
was not her sex, it was Scott's desire to allay his wife's concerns over
Tenge's admitted sexual behavior with him." Id. at 910.
In our case, the district court quoted at length from Tenge, stating
it found that decision "persuasive." However, as Nelson notes, there is a
significant factual difference between the two cases. As the Eighth
Circuit put it, "Tenge was terminated due to the consequences of her own
admitted conduct with her employer, not because of her status as a
woman." Id. The Eighth Circuit added a caveat:
The question is not before us of whether it would be sex
discrimination if Tenge had been terminated because Lori
[the owner's wife] perceived her as a threat to her marriage
but there was no evidence that she had engaged in any
sexually suggestive conduct.
Id. at 910 n.5. Nelson contrasts that situation with her own, where she
"did not do anything to get herself fired except exist as a female." 3
So the question we must answer is the one left open in Tenge —
whether an employee who has not engaged in flirtatious conduct may be
lawfully terminated simply because the boss views the employee as an
irresistible attraction. Notwithstanding the Eighth Circuit's care to leave
that question unanswered, it seems odd at first glance to have the
question of whether the employer engaged in unlawful discrimination
turn on the employee's conduct, assuming that such conduct (whatever
it is) would not typically be a firing offense. Usually our legal focus is on
the employer's motivation, not on whether the discharge in a broader
sense is fair because the employee did something to "deserve it." Title VII
and the Iowa Civil Rights Act are not general fairness laws, and an
employer does not violate them by treating an employee unfairly so long
as the employer does not engage in discrimination based upon the
employee's protected status.
In some respects, the present case resembles Platner. There a
business owner chose to terminate a female employee who worked on the
same crew as the business owner's son, after the wife of the business
owner's son became "extremely jealous" of her. Platner, 908 F.2d at 903.
3 Dr. Knight disputes this to some extent, but for summary judgment purposes,
we must assume the facts are as set forth above.
The district court found that the son was "largely to blame for fueling
[the wife's] jealousy," and that the plaintiffs conduct was "basically
blameless and no different from that of the male employees." Id.
Nonetheless, the Eleventh Circuit found no unlawful discrimination had
It is evident that Thomas, faced with a seemingly insoluble
conflict within his family, felt he had to make a choice as to
which employee to keep. He opted to place the burden of
resolving the situation on Platner, to whom he was not
related, and whose dismissal would not, as firing Steve
obviously would, fracture his family and its relationships. It
is thus clear that the ultimate basis for Platner's dismissal
was not gender but simply favoritism for a close relative.
Id. at 905. Significantly, although Dr. Knight discusses Platner at some
length in his briefing, Nelson does not refer to the decision in her briefing
or attempt to distinguish it. 4
4 When asked about Platner at oral argument, Nelson's counsel offered fair
criticism of some of the language used in the opinion. See Platner, 908 F.2d at 903 n.2.
Our research has found one case, not cited by the parties, where the court
arguably found the lack of an actual consensual relationship to be significant. In Mittl
v. New York State Division of Human Rights, the complaining witness alleged she was
unlawfully terminated due to her pregnancy. 794 N.E.2d 660, 662 (N.Y. 2003). The
employer, an ophthalmologist, denied the discrimination and indicated he fired the
employee because of the insistence of his wife who "began displaying extreme animosity
toward Rivera-Maldonado, even questioning whether [her husband] was the father of
the child." Mittl v. N.Y. State Div. of Human Rights, 741 N.Y.S.2d 19, 20 (App. Div.
2002), rev'd, 794 N.E.2d at 660. The intermediate appellate court overturned the
agency finding of pregnancy discrimination, concluding the employer "was forced to
choose between keeping his secretary on the payroll and saving his marriage." Id.
However, the New York Court of Appeals found that substantial evidence supported the
agency finding that the employer had discriminated based on pregnancy. See Mittl, 794
N.E.2d at 663. That court noted, among other things, that the employer had told the
complainant her pregnancy was "becoming a problem" in the office. Id. The court
added that certain cases cited by the intermediate court were "inapposite" because they
involved situations where plaintiffs "were terminated in the aftermath of consensual
sexual relationships with their employers" whereas here "neither party alleges that the
termination had anything to do with an actual sexual relationship between the parties."
Id. at 664. Notwithstanding this language in the court's opinion, we do not believe Mittl
ultimately has any bearing on the present case because there was substantial evidence
in Mittl that the employer had engaged in unlawful, pregnancy-based discrimination,
regardless of whether a consensual relationship existed.
Nelson does, however, have three responses to Dr. Knight's overall
position. First, she does not necessarily agree with Tenge. She argues
that any termination because of a boss's physical interest in a
subordinate amounts to sex discrimination: "Plaintiffs sex is implicated
by the very nature of the reason for termination." Second, she suggests
that without some kind of employee misconduct requirement, Dr.
Knight's position becomes simply a way of enforcing stereotypes and
permitting pretexts: The employer can justify a series of adverse
employment actions against persons of one gender by claiming, "My
spouse thought I was attracted to them." Third, she argues that if Dr.
Knight would have been liable to Nelson for sexually harassing her, he
should not be able to avoid liability for terminating her out of fear that he
was going to harass her.
Nelson's arguments warrant serious consideration, but we
ultimately think a distinction exists between (1) an isolated employment
decision based on personal relations (assuming no coercion or quid pro
quo), even if the relations would not have existed if the employee had
been of the opposite gender, and (2) a decision based on gender itself. In
the former case, the decision is driven entirely by individual feelings and
emotions regarding a specific person. Such a decision is not gender-
based, nor is it based on factors that might be a proxy for gender.
The civil rights laws seek to insure that employees are treated the
same regardless of their sex or other protected status. Yet even taking
Nelson's view of the facts, Dr. Knight's unfair decision to terminate
Nelson (while paying her a rather ungenerous one month's severance)
does not jeopardize that goal. This is illustrated by the fact that Dr.
Knight hired a female replacement for Nelson. As the Plainer court
observed, " '[W]e do not believe that Title VII authorizes courts to declare
unlawful every arbitrary and unfair employment decision.'" Id. at 905
(quoting Holder v. City of Raleigh, 867 F.2d 823, 825-26 (4th Cir. 1989)).
Nelson's viewpoint would allow any termination decision related to
a consensual relationship to be challenged as a discriminatory action
because the employee could argue the relationship would not have
existed but for her or his gender. This logic would contradict federal
caselaw to the effect that adverse employment action stemming from a
consensual workplace relationship (absent sexual harassment) is not
actionable under Title VII. See, e.g., Benders v. Bellows & Bellows, 515
F.3d 757, 768 (7th Cir. 2008) (holding that allegations that an employee's
termination was based on the owner's desire to hide a past consensual
relationship from his wife were "insufficient to support a cause of action
for sex discrimination"); see also Blackshear v. Interstate Brands Corp.,
No. 10-3696, 2012 WL 3553499 at *3 (6th Cir. 2012) (affirming summary
judgment for the employer where the employee presented evidence that
she was treated unfairly due to her supervisor's jealousy of her
relationship with another employee, and noting that "personal animus
. . . cannot be the basis of a discrimination claim under federal or Ohio
law"); West v. MCI Worldcom, Inc., 205 F. Supp. 2d 531, 544-45 (E.D. Va.
2002) (granting summary judgment to an employer when an employee
was removed from a project because of a supervisor's animosity toward
the employee over her termination of their consensual relationship but
there was no evidence the supervisor had made unwanted advances to
the employee following the termination of that relationship).
Nelson raises a legitimate concern about a slippery slope. What if
Dr. Knight had fired several female employees because he was concerned
about being attracted to them? Or what if Ms. Knight demanded out of
jealousy that her spouse terminate the employment of several women?
The short answer is that those would be different cases. If an employer
repeatedly took adverse employment actions against persons of a
particular gender because of alleged personal relationship issues, it
might well be possible to infer that gender and not the relationship was a
It is likewise true that a decision based on a gender stereotype can
amount to unlawful sex discrimination. Price Waterhouse v. Hopkins,
490 U.S. 228, 251, 109 S. Ct. 1775, 1791, 104 L. Ed. 2d 268, 288 (1989)
("As for the legal relevance of sex stereotyping, we are beyond the day
when an employer could evaluate employees by assuming or insisting
that they matched the stereotype associated with their group, for [i]n
forbidding employers to discriminate against individuals because of their
sex, Congress intended to strike at the entire spectrum of disparate
treatment of men and women resulting from sex stereotypes." (citation
and internal quotation marks omitted)); see also City of L.A., Dep't of
Water & Power v. Manhart, 435 U.S. 702, 707, 98 S. Ct. 1370, 1375, 55
L. Ed. 2d 657, 664-65 (1978) ("It is now well recognized that
employment decisions cannot be predicated on mere 'stereotyped'
impressions about the characteristics of males or females."); Schwenk v.
Hartford, 204 F.3d 1187, 1202 (9th Cir. 2000) ("Discrimination because
one fails to act in the way expected of a man or woman is forbidden
under Title VII."). If Nelson could show that she had been terminated
because she did not conform to a particular stereotype, this might be a
different case. But the record here does not support that conclusion. It
is undisputed, rather, that Nelson was fired because Ms. Knight, unfairly
or not, viewed her as a threat to her marriage. 5
5 As we have noted above, Ms. Knight said that she thought it was "strange that
after being at work all day and away from her kids and husband that [Nelson] would not
be anxious to get home like the other [women] in the office." Viewed in isolation, this
Nelson also raises a serious point about sexual harassment. Given
that sexual harassment is a violation of antidiscrimination law, Nelson
argues that a firing by a boss to avoid committing sexual harassment
should be treated similarly. 6 But sexual harassment violates our civil
rights laws because of the "hostile work environment" or "abusive
atmosphere" that it has created for persons of the victim's sex. See, e.g.,
Faragher v. City of Boca Raton, 524 U.S. 775, 786-90, 118 S. Ct. 2275,
2283-84, 141 L. Ed. 2d 662, 675-78 (1998). On the other hand, an
isolated decision to terminate an employee before such an environment
arises, even if the reasons for termination are unjust, by definition does
not bring about that atmosphere.
As a Michigan appellate court observed regarding a male
employee's claim that he had been subjected to sex discrimination:
We do not read the [Michigan Civil Rights Act or CRA]
to prohibit conduct based on romantic jealousy. . . .
Interpreting the CRA's prohibition of discrimination based on
sex to prohibit conduct based on romantic jealousy turns the
CRA on its head. The CRA was enacted to prevent
discrimination because of classifications specifically
enumerated by the Legislature and to eliminate the effects of
offensive or demeaning stereotypes, prejudices, and biases.
It is beyond reason to conclude that plaintiffs status as the
romantic competition to the woman Vajda sought to date
places plaintiff within the class of individuals the Legislature
sought to protect when it prohibited discrimination based on
sex under the CRA.
statement could be an example of a gender-based stereotype. However, as with Ms.
Knight's other comments regarding Nelson, this statement was linked to a specific
concern about Nelson's relationship with her husband. This statement immediately
followed Ms. Knight's claim that Nelson "liked to hang around after work when it would
be just her and [Dr. Knight] there." Viewing the summary judgment record, we come to
the same conclusion as the district court: There is no genuine issue of material fact that
the reason for Nelson's firing was Ms. Knight's demand that she be fired, which was
based in turn upon Ms. Knight's perception that the relationship between Dr. Knight
and Nelson was a threat to the marriage.
6 Allegedly, Dr. Knight told Nelson's husband that he "feared that he would try to
have an affair with her down the road if he did not fire her."
Plaintiff proceeded to trial on a theory of
discrimination based on romantic jealousy. Plaintiff did not
claim and the evidence did not establish that plaintiff was
required to submit to sexually-based harassment as a
condition of employment. Nor did the evidence presented at
trial support a theory of gender-based discrimination.
Plaintiff established, at most, that Vajda's alleged adverse
treatment of plaintiff was based on plaintiffs relationship
with Goshorn, not plaintiffs gender. Vajda may have had a
romantic purpose in initially pursuing Goshorn and may, as
the trial court surmised, have intended to eliminate plaintiff
so that he could pursue Goshorn 's affections. However,
Vajda's alleged harassment was not conduct that is
proscribed by the CRA because it was not gender-based.
Indeed, if Vajda's motive was to win the affection of Goshorn,
it would not matter if the person Vajda perceived to be
standing in his way was male or female. As such, it is
evident that plaintiffs gender was not the impetus for
Vajda's alleged conduct, but rather was merely coincidental
to that conduct.
Barrett v. Kirtland Cmty. Coll., 628 N.W.2d 63, 74 (Mich. Ct. App. 2001)
(citations and footnotes omitted); see also Huffman v. City of Prairie Vill,
980 F. Supp. 1192, 1199 (D. Kan. 1997) ("Plaintiff suggests that the
actions taken by Lt. Young as a result of Lt. Young's beliefs concerning
plaintiffs relationship with another police officer constitute gender
discrimination because such actions would not have been taken against
plaintiff but for her gender. We cannot agree with plaintiffs expansive
definition of discrimination based upon sex."); Bush v. Raymond Corp.,
954 F. Supp. 490, 498 (N.D.N.Y. 1997) ("[P]laintiffs discriminatory
discharge claim fails insofar as it asserts that plaintiff was discharged
because of Rusnak's perception that plaintiff and Sawyer had a sexual
relationship."). Our decision today is consistent with these authorities.
As we have indicated above, the issue before us is not whether a
jury could find that Dr. Knight treated Nelson badly. We are asked to
decide only if a genuine fact issue exists as to whether Dr. Knight
engaged in unlawful gender discrimination when he fired Nelson at the
request of his wife. For the reasons previously discussed, we believe this
conduct did not amount to unlawful discrimination, and therefore we
affirm the judgment of the district court.